Reid v D J and D R MacKinnon and QBE Workers Compensation

[2011] VCC 1196

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-05425

CLARE MAREE REID	Plaintiff
v
D J & D R MacKINNON	First Defendant
and
QBE WORKERS COMPENSATION	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Warrnambool
DATE OF HEARING:	4 and 5 August 2011
DATE OF JUDGMENT:	5 August 2011 (Revised)
CASE MAY BE CITED AS:	Reid v D J & D R MacKinnon & QBE Workers Compensation
MEDIUM NEUTRAL CITATION:	[2011] VCC 1196

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – injury to right knee – pain and suffering only.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D G Brookes SC	Stringer Clark
Mr N R Bird
For the Defendants	Mr D R Myers	Lander & Rogers
HIS HONOUR:

1          The plaintiff suffered injury to her right knee when a cow fell on it on 11 July 2005 in the course of her employment with the first defendant. As a result she claims to have suffered a posterior cruciate ligament injury and a further strain injury to another ligament of the right knee which has caused ongoing pain and restriction, in particular to her enjoyment of a range of sporting activities and to her farm work.

2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff's employment on 11 July 2005. The body function said to be lost or impaired is the right knee. The application is thus brought under sub-s.(a) of the definition of serious injury as contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering damages only.

3          In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function of the knee are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the knee.

4          The plaintiff was the only witness to be called and cross-examined. In addition, various medical reports, radiological reports and other material was tendered into evidence. I have read all the tendered material.

Relevant Background

5          The plaintiff was born in 1969 and is now forty-two years of age. She was schooled to Year 11. She worked in various areas of employment, including

The Injury and Its Consequences

6          The injury occurred on 11 July 2005 when the plaintiff was assisting in calving. Her right knee became pinned under a cow in what I take to be an awkward position. She was taken to the Terang Hospital in “awful pain” and was treated there. The next day she went to see her general practitioner, Dr Wong. She was first referred to an orthopaedic surgeon, Mr Sundaram of Warrnambool, and saw him on 15 July 2005. He undertook an MRI scan of the right knee which he said showed a high-grade intrasubstance tear or complete tear of the posterior cruciate ligament. He further diagnosed a Grade 1 sprain of the medial cruciate ligament. He further examined the plaintiff on 15 September 2005. The plaintiff said that there was some improvement in her symptoms although she had difficulty extending her knee. There was restriction in the range of movement of the knee and she was advised to undertake physiotherapy.

7          When he next saw the plaintiff in October 2005, she was back working four hours a day although complaining of stiffness in the knee. On examination, he noted quadriceps wasting and weakness of the right leg. Later, in May 2006, the plaintiff was referred by her general practitioner to Mr Rodney Richardson, orthopaedic surgeon. She first presented to him on 30 May 2006 saying that her main complaint was pain located in the medial aspect of her right knee, particularly with twisting or turning movements. She had difficulty squatting. She was able to walk without great difficulty on flat ground but had trouble with more laborious activities.

8          She was reviewed again on 13 June 2006 following an MRI scan which confirmed clinical findings of a Grade 3 posterior cruciate ligament injury. He said that the management problem was of ongoing pain in the setting of multi- ligament instability. He said that there was a prospect of a soft tissue reconstruction of the posterior cruciate ligament which could be successfully undertaken but her main problem was that of pain which was attributable, he said, to the bony stress associated with the medial tibial plateau. He said that such soft tissue reconstruction would generally fail to relieve the pain and the most appropriate form of treatment was by conservative therapy, particularly with muscle strengthening and a modified exercise program.

9          He said that the natural progress of the condition was often with a degenerative arthritic component. He described the injury to her right knee as significant. He said that she had functional limitations in the activities for daily living which he said were minimal but he said that there was a significant restriction in her capacity to undertake heavy manual work. He said the natural history is one of gradual deterioration to a degenerative arthritic knee over a twenty or thirty-year period. There was the possibility of surgical intervention in the future by way of arthroscopy.

10        In 2006, the plaintiff returned to work with the first defendant. She had a difficult relationship with Mr McKinnon, who she claims was abusive. She enjoyed the farm work and was keen to return to it but found it difficult to carry out the more strenuous activities in a job which required a particularly significant amount of walking. She said she needed the assistance of other workers. She left that work in July 2006 although she admits this was not because of her knee problems but rather the relationship she had with Mr McKinnon had broken down.

11        The plaintiff says that at present she suffers pain in the knee each day. She takes Nurofen, four tablets per day, although for a significant period after the injury she did not take any pain-relieving medication. She took over her father's mail run with Australia Post and currently works full-time driving up to 300 kilometres per day using her right leg on the accelerator. She was advised to undertake an exercise program to strengthen the associated muscles, but has done only limited exercise because of the difficulty of finding time. She lives independently and is able to undertake most of her personal activities of daily living.

12        In terms of the consequences as a result of injury they include the following. She suffers constant pain in the knee exacerbated by more strenuous activities. She says that her sports activities are considerably reduced. She loved basketball and played regularly although was not playing at the time of injury. Rather, she enjoyed social basketball, playing with members of her family and others. She says she was asked of recent times to coach the under 14 boys Terang basketball team but that she was unable to take up the position. She says that as a basketball coach she would be too passionate and would be unable to sit quietly on the sidelines, coaching. I have some reservations about this claim. I would have thought she would be able to control her passion to the point of being able to undertake such coaching activities.

13        There is no doubt however, she enjoyed a wide range of outdoor activities which are now considerably restricted. I accept that she would kick the football regularly and play other sports, particularly with her nephews with whom she is close. She further says that she misses farm work which was in her blood and a passion. She has difficulty kneeling and squatting. She said that she enjoyed the rural atmosphere and farm animals. I accept that she now cannot return to this nor participate in the enjoyment of a family's rural holding as she would wish. She further says she cannot ride a motorcycle on long trips as she enjoyed before the injury. I find this somewhat inconsistent with her ability to be able to travel up to 300 kilometres per day using her right foot on the accelerator but nonetheless accept that there is some reduction in her enjoyment of this pastime.

14        A further consequence is that there is the prospect of further deterioration to the knee as outlined in the report of Mr Richardson and the possibility of knee replacement in the future. Her brother deposed that his sister was a tomboy who enjoyed farm work. He states that she is affected by the pain in her knee and has become moody. He states that it affects her sleep and that further, she is significantly restricted in her sports and more vigorous activities which she previously enjoyed.

Medical Opinions

15        A range of medical opinions were tendered into evidence. In a recent report, her treating general practitioner, Dr Fitzgerald, said that he sees the plaintiff at the present time every few months. He states that she has ongoing pain in the right knee from the farm injury with a posterior cruciate ligament tear which still gives her a lot of trouble and pain. He states that she certainly has daily struggles and instability.

16        The plaintiff was examined by Mr Ian McLean, orthopaedic surgeon, in May 2011. Obtaining a history of her current symptoms, the plaintiff said that she had a constant awareness and soreness in the medial aspect of the knee and also laterally together with a burning sensation laterally to the calf. She said that there was sharp pain upon twisting or sudden movements or when negotiating rougher ground. She claimed to suffer discomfort or pain going up and down slopes and stairs. She said that she was unable to run or load on the knee.

17        Mr McLean noted that in the past the plaintiff had been very fit and active. He accepted that she was unable to do any running because of her right knee problem and was limited in her walking and unable to squat or kneel. He noted that she was able to look after herself and undertake general household chores. When he examined her in May 2011, she walked with a slight limp, she had right quadricep wasting and was limited in her ability to squat. He diagnosed her as suffering a right knee injury with rupture of the posterior cruciate ligament and a sprain of the medical ligament plus mild bone oedema. He said this was as a result of the subject incident. He said that there was, at the time he examined her, evidence of some progressive patellofemoral medical compartment chondral pathology or early degenerative change. His opinion was that she was unable to perform work which would involve the need to squat or kneel or perform loaded and twisting activities, including work on rough ground and slopes. He thought that that would continue into the future with a progressive deterioration.

18        He thought she was able to continue her present employment with Australia Post on a full-time basis although she needed to take care getting in and out of a motor vehicle. He said she was unable to play any recreational sports of basketball or kicking the football or playing cricket with her nephews in the park. He said that she was limited to the household and gardening duties. He said that the knee was vulnerable to further meniscal and chondral pathologies and there was the prospect of the development of mechanical symptoms which may require an arthroscopy. He said with the progression of time there would be further degenerative changes to the right knee with a possible need into the future of a total knee reconstruction. He was unable to predict when that might occur.

19        In a more recent report of August 2011, he considered recent MRI studies taken in July 2011. The MRI confirmed the past posterior cruciate ligament injury although the articular surfaces were said to be intact with suspicion of only mild chondromalacia along the central ridge of the patella. He said that clinically she did display patellofemoral crepitus, a 2-3 plus posterior sag and mild quadricep wasting of the right thigh compared to the left. He said radiologically there was no significant change over the five-year period to the most recent MRI study. He said she should be encouraged to continue a light exercise program involving swimming and pool exercise. He said she should be able to continue her present work activities but with caution, and she would not be encouraged to return to manual or farm labouring work.

20        He concluded that despite the fact that there were minimal changes in the last five years radiologically, that the plaintiff continued to have ongoing symptoms in the knee. He said there was an increased risk of further degenerative changes into the future. He could not put an exact time on this and its development would depend upon the impact of twisting and loading activities which would create a greater rate of progression.

21        On behalf of the defendant, the plaintiff was examined by Dr David Kotzman, specialist occupational physician, in October 2008. He noted on examination marked instability of the right knee and mild collateral ligament laxity. He commented that the plaintiff was suffering persistent right knee dysfunction as a consequence of the right posterior cruciate ligament tear and medial collateral ligament strain.

22        Finally, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in February 2011. He obtained a history of intermittent pain in the right knee. The plaintiff said she had difficulty walking on uneven ground and sloping ground. She said her knee became painful after a lot of driving. At the time she said she felt unsafe on the knee but there were no true giving way episodes. Mr Dooley concluded that the plaintiff had sustained a major

23        He said that reconstruction type surgery for ruptures of the posterior cruciate ligament are somewhat of a controversial issue, and the outcome unpredictable and patients often noticing a continuing laxity of the knee. He said that in his clinical experience it was unusual for a patient in this setting to go on to develop major degenerative change within the knee joint requiring replacement surgery. He said that if patients undertake regular exercise and strengthen their thigh musculature as much as possible, then overall they cope in most of their activities.

24        He said she should be advised to avoid regular heavy impact activity and activities involving squatting or kneeling on the knee. He said overall she was coping well with her work. He commented that she presented as a sensible and genuine historian and that she had recovered well. He said she was capable of carrying out light physical work and clerical duties but would need to avoid work that involved a lot of kneeling or squatting on her right knee or standing for any prolonged period of time. He said that she would continue to suffer intermittent pain with the knee and would be unable to engage in the past active leisure pursuits she enjoyed. He said that the natural history of the injury is associated with the slow development of post-traumatic degenerative change within the knee joint with time. He said that these changes are not always accompanied by deteriorating symptoms and in his experience do not often progress to total knee replacement.

25        I had the opportunity to assess the plaintiff in the course of cross-examination. In my view, she presented as a genuine and frank person. I assess her as a stoic person putting up with ongoing complaints of pain in the knee and restrictions. For these reasons, I accept her complaints of ongoing pain and restriction.

26        Surveillance film was shown of her on 13 December 2010. It is clear on that occasion she walked with a distinct limp and had difficulty ascending several stairs. Further surveillance film of 11 July 2011 showed her moving in a relatively free and uninhibited manner, walking up and down stairs and rolling a tyre out to her car. However, none of the surveillance film in my view indicated a discrepancy, in a general sense, with the claims in her affidavit and the histories to the doctors.

27        As stated, I have some reservations about some of the matters that she claims restriction in, particularly her capacity to act as a basketball coach or to ride a motorcycle for long periods of time. However, having assessed the plaintiff, I am satisfied as to the following. Firstly, that she has suffered a significant ligament injury to her right knee. I accept that this injury has been the cause of ongoing pain through to the present time. I accept that she was a person who particularly enjoyed outdoor and sporting activities. She was a regular basketball player, enjoyed strenuous farm activities both in her work and at home and was active with other members of her family. I accept that she now cannot undertake these farming activities and is significantly restricted in a range of sporting and recreational activities which she previously enjoyed.

28        A significant feature, in my view, is that it is likely there will be future degeneration of the right knee. In the opinions of Messrs Richardson and McLean, this may lead to right knee replacement although neither is able to say when. In the view of Mr Dooley, he accepts that there is likely to be ongoing degeneration but says that this does not always involve ongoing and increasing symptoms and in his view a right knee replacement is unlikely. Nonetheless, in my view there is still the prospect of ongoing deterioration into the future in a relatively young person and a person who formerly enjoyed a wide range of extensive activities.

29        The real question in this application is whether the consequences to which I have referred reach the very considerable level as the legislation requires. Weighing the impact of these consequences upon the plaintiff, viewed objectively, and considering this injury within the range of injuries coming before the courts, I am satisfied that the consequences do achieve the very considerable level. I thus propose to grant leave to issue proceedings at common law.

- - -